Derouin v. Granite State Realty, Inc., 82-083
| Decision Date | 24 March 1983 |
| Docket Number | No. 82-083,82-083 |
| Citation | 459 A.2d 231,123 N.H. 145 |
| Parties | Brian DEROUIN et al. v. GRANITE STATE REALTY, INC., et al. |
| Court | New Hampshire Supreme Court |
Cooper, Hall, Whittum & Shillaber, Rochester (Peter A. Handy, Rochester, on the brief and orally), for plaintiffs.
Ouellette, Hallisey, Dibble & Tanguay P.A., Dover (William L. Tanguay, Dover, on the brief and orally), for defendant Stewart E. McKinney.
The plaintiffs appeal from a decision of the Superior Court (Wyman, J.) denying them restitution in their contractual action against the defendants in connection with the purchase of a house. We affirm.
In August 1976, the parties entered into a contract for the purchase and sale of the defendant Stewart McKinney's Cape Cod-style house located in Wakefield. Approximately one month after the closing, the plaintiffs, Brian and Martha Derouin, discovered that the center chimney and the fireplaces were unsafe and would have to be rebuilt. The plaintiffs hired a mason to commence repairs on the chimney.
Subsequently, the plaintiffs filed suit against the seller and his broker, the defendant Granite State Realty, Inc., seeking restitution of the purchase price for alleged mutual mistake. A jury found that the conveyance was based on a mutual mistake as to a material fact, the condition of the chimneys, but the trial court denied the restitution requested by the plaintiffs. The trial judge ruled that while a mutual mistake, such as existed in this case, gave the plaintiffs a right to rescind the transaction, the remedy of restitution without rescission of the conveyance was unavailable. Additionally, the court held that because the plaintiffs had incurred substantial expenditures for reconstruction of the fireplaces and chimney, rescission was no longer possible. The plaintiffs then filed a post-trial motion for judgment notwithstanding the verdict or, in the alternative, to set aside the verdict for a new trial. The trial court denied the motion, and the plaintiffs appealed.
The plaintiffs do not challenge the trial court's finding of mutual mistake, but they argue that the court erred in not allowing the remedy of restitution. They contend that the court's inability to return the parties to the status quo presented no bar to the granting of restitution, and also that the plaintiffs' recovery was not barred by the jury's finding that they were seventy-five percent comparatively negligent because they had failed to discover the defective condition.
Where the parties to a transaction are mutually mistaken as to a basic assumption on which the contract is made and that mistake has a material effect upon the agreed transaction, the contract is voidable by the adversely affected party. Restatement (Second) of Contracts § 152, at 385 (1979). When the electing party seeks to avoid the contract, return of anything received in the exchange made under the agreement is ordered by the court. D. Dobbs, Handbook on the Law of Remedies § 11.5, at 741 (1973). A party seeking to avoid an agreement on the basis of mutual mistake must ordinarily avoid the...
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